Wozniak v. Stoner Meat Co.

• Decision Date: 25 February 1937
• Docket Number: 6373
• Citation: 57 Idaho 439,65 P.2d 768
• Parties: J. V. WOZNIAK, Respondent, v. STONER MEAT COMPANY, Employer, and STATE INSURANCE FUND, Surety, Appellants
• Court: Idaho Supreme Court

65 P.2d 768

57 Idaho 439

J. V. WOZNIAK, Respondent, v. STONER MEAT COMPANY, Employer, and STATE INSURANCE FUND, Surety, Appellants

No. 6373

Supreme Court of Idaho

February 25, 1937

WORKMEN'S COMPENSATION ACT-LEAD POISONING-INJURY ARISING OUT OF AND IN COURSE OF EMPLOYMENT.

Evidence held to justify finding that employee was poisoned by "litharge" which he used in installing and working on ice machines and plants for employer and that his poisoned condition was result of an accident which occurred in course of employment entitling him to compensation.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.

Industrial Accident Board entered an order denying plaintiff compensation, from which order he appealed to the district court. District court reversed order of board and directed board to award compensation, from which judgment defendants appeal. Judgment of district court affirmed.

Affirmed. Costs awarded to respondent.

Carroll F. Zapp, for Appellants.

An injury to be compensable must be the result of an accident disability from disease is not compensable unless it is the result of an injury by accident. (Secs. 43-1809, 43-1810, I C. A.; Croy v. McFarland-Brown Lumber Co., 51 Idaho 32, 1 P.2d 189; Ramsay v. Sullivan Mining Co., 51 Idaho 366, 6 P.2d 856.)

Elam &amp Burke, for Respondent.

Sudden injuries resulting from lead poisoning unlooked for and not anticipated, is personal injury by accident arising out of and in the course of employment. (Ramsay v. Sullivan Min. Co., 51 Idaho 366, 6 P.2d 856; Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605; Victory Sparkler & Specialty Co. v. Francks, (Md.) 128 A. 635.)

AILSHIE, J. Morgan, C. J., and Holden and Givens, JJ., concur.

OPINION

AILSHIE, J.

Respondent, a young man twenty-three years of age at the time of the hearing in this case, was first employed by appellant, Stoner Meat Company (to which we will hereinafter refer as the company), in 1931 to help install an ice machine, having had previous experience in that work while in his father's butcher-shop. The company needed someone to keep the "machinery in running order," and "the fellows that worked out there didn't seem to be able to do the work and keep it running properly." The period of his employment continued until some time in April, 1935. During the intervening years respondent worked at various jobs with at least eight other companies, installing and repairing refrigerator plants and doing other work.

In July and August, 1934, respondent assisted in installing a refrigerating plant for the company at Ontario, Oregon; in October he installed another ice machine for the company and in November he worked on a shift, boning meat. During December of that year he boned meat for the I. E. R. A. Most of these odd jobs were of short duration, four or five days. During the entire time respondent worked on the ice machines he used litharge in connection with the work.

Litharge is used as a pipe cement which is applied to the threads in the pipe and on the inside of the fittings. Respondent testified to using four or five batches (two or three tablespoons each) of litharge a day in working on an ice machine. Sometimes in "working overhead in a place that is hard to get at," the litharge would run off and drop on his face. In pipe fitting respondent often applied the litharge with his hands. Litharge is a fused form of lead protoxide, chemically designated as "PbO." (Dorland's Med. Dictionary.) It was supplied to the workman in commercially powdered form, and in order to use it in his work it was necessary to first mix it with glycerin, so as to form a sticky paste that would adhere to the pipes on which he was working. It is difficult to handle it in the powdered form without inhaling some of it: this is perhaps its most dangerous form for handling. (6 Schneider's Work Comp. Laws Supp., p. 1273.) In handling it in any form some of it will necessarily stick to the hands and in that way may very easily get into the mouth and be swallowed. It is also believed by recognized authorities that it can be absorbed through the pores of the skin.

Prior to this illness respondent had always been in excellent health. Prior to October, 1934, his use of litharge had been intermittent and of no material consequence. He had never heard of anyone getting ill from working with litharge or the use of lead in any way until this sickness.

During the latter part of January or early February, 1935 respondent used litharge in working for the Booth Fisheries Company. For about three weeks in April, 1935, he worked for the company in moving an ice machine. He became ill and suffered pains in his stomach and bowels, had dysentery, and later suffered a numbness in his hands and feet and was nervous and depressed. He consulted a physician about the middle of that month and was later hospitalized from July 22d to October 19t...